IN THE CASE OF: BOARD DATE: 13 February 2020 DOCKET NUMBER: AR20170000409 APPLICANT REQUESTS: His uncharacterized characterization of service be upgraded to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 293 (Application for the Review of Discharge) in lieu of a DD Form 149 (Application for Correction of Military Record) FACTS: 1. The applicant did not file within the 3 year time frame provided in Title 10, U.S. Code, section 1552(b); however, the ABCMR conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states, in effect, he was an eager young man when he joined the service although immature at the time. He has bipolar disorder (manic-depressive disorder) which is causing him problems. He works with a doctor who prescribes medication for him to manage his behavioral health symptoms. 3. On 25 June 1984 the applicant enlisted in the U.S. Army Reserve (USAR) under the delayed entry program in the rank and grade of private first class/E-3. Subsequently, he was released from the USAR entering the Regular Army on 28 August 1984. His enlistment contract shows he enlisted for a contractual period of 3 years. 4. On 12 September 1984 the applicant was counseled by a senior noncommissioned officer (NCO) for multiple disciplinary infractions occurring during the period from 4 September to 12 September 1984. A DA Form 4856 (General Counseling Form) documents the counseling session. His NCO stated based on his observations and after talking to the applicant he saw no potential for the applicant to improve his conduct in his current unit. He recommended the applicant be transferred to another training unit. The applicant’s company commander stated the applicant had a poor attitude and was unwilling to perform the tasks required of a soldier. He also recommended transferring the applicant to another training unit. 5. On 15 September 1984 he was counseled for his continued failure to conform to U.S. Army training standards. His company commander stated on a DA Form 4856 that the applicant came into the service because he was pressured to join the military by his father. His attitude was poor and he was uncooperative. When questioned, the applicant could not explain why he was experiencing problems. He recommended the applicant be immediately discharged. 6. On 17 September 1984 he accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice, for providing a false statement, failure to go to his appointed place of duty and dereliction of duties. His punishments were reduction to private/E-2 and forfeiture of pay. 7. On 23 September 1984 a chaplain counseled the applicant. He documented his counseling stating the applicant was a 21 year old single male who was the youngest of 15 children. His mother recently passed in 1983. He was a competitive athlete in school for track and field. He stated he could not do physical fitness training now because he had high blood pressure. At the conclusion, the chaplain opined the applicant was a malingerer who was more than capable of completing required tasks. 8. On 3 October 1984 his company commander initiated action to discharge him because of his unwillingness to adapt to the military training environment and lifestyle. He stated the applicant would receive an entry level separation with uncharacterized service. The commander acknowledged the applicant had the potential to complete the required training. His misconduct included disobeying lawful orders, an uncooperative attitude and his disruptions led to the commander initiating separation action under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 11, entry level status performance and conduct. He was advised of his rights: * to consult with counsel or a civilian counsel of your choice at your own expense * to submit statement on his own behalf * to obtain copies of documents associated with his separation * to request a separation physical if he felt his physical status had changed from his entrance physical * to waive his rights in writing 9. The applicant acknowledged receipt of his pending separation action. He indicated with his signature he would receive an entry level separation with uncharacterized service. He indicated he did desire to consult with counsel, would not make a statement and waived his rights. 10. On 12 October 1984 the separation approval authority approved the applicant’s administrative separation under the provisions of Army Regulation 635-200, chapter 11, unsatisfactory performance or conduct (or both) while in an entry-level status, first 180 days of service. Accordingly, separation orders were prepared ordering the applicant’s discharge from the Regular Army on 17 October 1984. He received a DD Form 214 (Certificate of Release or Discharge from Active Duty) containing the following pertinent information: * Block 12c (Net Active Service This Period) – 1 month and 20 days * Block 23 (Type of Separation) – discharge * Block 24 (Character of Service) – entry level separation, uncharacterized * Block 25 (Separation Authority) – Army Regulation 635-200, paragraph 11- 3a(3a) * Block 28 (Narrative Reason for Separation) – entry level status performance and conduct 11. In the processing of this application, the staff of the Army Review Boards Agency mailed the applicant a letter on or about 28 February 2019 requesting he provide copies of his medical records or documents supporting his behavioral health condition(s). (The applicant’s letter was returned by the U.S. Postal Service due to a bad address.) 12. On 26 December 2019, the Army Review Boards Agency (ARBA) behavioral health medical advisor provided an advisory opinion. The advisory found the available documentation showed the applicant met medical retention standards in accordance with Army Regulation 40-501 (Standards of Fitness). There is no evidence there was a behavioral health diagnosis during his limited period of service. Thus, there is no behavioral health condition that would mitigation his entry level performance and conduct. A copy of the complete medical advisory was provided to the Board for their review and consideration. 13. On or about 5 January 2020 the applicant was mailed a copy of the advisory to allow him an opportunity to respond. (The advisory was returned by the U.S. Postal Service as undeliverable.) BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records, regulatory requirements, and published DoD guidance for consideration of discharge upgrade requests. The Board considered the applicant’s statement, his record of service, the frequency and nature of his misconduct, and the character and reason for his separation. The Board noted the facts presented above. 2. The Board noted that the applicant was correctly separated according to regulation after 1 month and 20 days service with a character of service as uncharacterized which is the correct character of service for a service member discharged in the first 180 days of service. 3. The Board found insufficient evidence of in-service mitigation to overcome the misconduct and there was insufficient post-service evidence to justify a clemency determination. The Board found the character of service equitable under the circumstances. Based on a preponderance of evidence, the Board determined that there was no error or injustice in the applicant’s discharge or character of service, or basis for clemency. 4. After reviewing the application and all supporting documents, the Board found that relief is not warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. REFERENCES: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the 3 year statute of limitations if the Army Board for Correction of Military Records (ABCMR) determines it would be in the interest of justice to do so. 2. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. The separation policies promote the readiness of the U.S. Army by providing an orderly means to judge the suitability of persons to serve in the Army on the basis of their conduct and their ability to meet required standards of duty performance and discipline. It maintains standards of performance and conduct through characterization of service in a system that emphasize the importance of honorable service. a. Title 10, U.S. Code, section 1168 provides that a discharge certificate or certificate of release from active duty will be given to each Soldier of the Army upon discharge from Service or release from active duty. Chapter 3 states a separation will be described as entry level with uncharacterized service if the Soldier is in an entry-level status at the time separation action is initiated. It will be so indicated on the Soldier’s DD Form 214. b. Chapter 11 provides for the separation of personnel because of unsatisfactory performance or conduct (or both) while in an entry-level status. When separation of a Soldier in entry-level status is warranted due to unsatisfactory performance or minor disciplinary infractions (or both) as evidenced by inability, lack of reasonable effort, or failure to adapt to the military environment, he or she will normally be separated per this chapter. Service will be uncharacterized for entry-level separation under the provisions of this chapter. This policy applies to Soldiers in the Regular Army, Army National Guard (ARNG), and USAR who have completed no more than 180 days of continuous active duty or initial active duty for training (IADT) or no more than 90 days of Phase II under a split or alternate training option. c. Section II (Terms) of the Glossary defines entry-level status for Regular Army Soldiers as the first 180 days of continuous active duty or the first 180 days of continuous active duty following a break of more than 92 days of active military service. For ARNG and USAR Soldiers, entry-level status begins upon enlistment in the ARNG or USAR. For Soldiers ordered to IADT for one continuous period, it terminates 180 days after beginning training. For Soldiers ordered to IADT for the split or alternate training option, it terminates 90 days after beginning Phase II of Advanced Individual Training. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170000409 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1